Tempest v Rural Payments Agency Tribunal Thread 5

[fanOfBen]

Previous thread:
www.mumsnet.com/talk/womens_rights/5549488-tempest-v-rural-payments-agency-tribunal-thread-4

TT substack: https://tribunaltweets.substack.com/p/tempest-vs-defra-and-rural-payments

Tempest (a TW) is claiming discrimination, harassment and/or victimisation on grounds of gender reassignment. Central to the claim is the existence of the Sex Equality and Equity Network in the Civil Service (SEEN). SEEN has been granted right to intervene. Parts of the original claim against the co-chair of SEEN (Elspeth Duemmer-Wrigley) and another party (Andreas Mueller) were struck out or narrowed. Another claimant, PQ, is no longer part of the case.
I will also note that Elspeth still has a garden in need of seeds and water to support the ability of SEEN to be an intervenor in this case. The claim originated because she said "only women menstruate" and a search with her name and those terms at the usual gardening website should point you to her plot.

Please tell me she's going to ask what difference it would have made...

From TT:

more appropriate to say that DEFRA showing leadership
SD not for me to say,
NC HH asked you to opine on what GC beliefs are, and are you an expert on this area
SD no I am not an expert
NC you haven't seen SEEN 'about us' or 'mythbusters'
J when you say 'about us' was that before you made your decision

SD yes
NC do you accept that GC does not reject GI, it's a more nuanced position, some people have a GI
J did GC belief form any part of your decision
SD no it had no impact
NC I should challenge this one, HH said SEEN was unique in denying the the recognition of GI people

SD did I say that? I don't think I am able to comment
NC/J - discuss specific language
J when you made your decision were you evaluating the the relevant merits of GI vs GC belief
SD I took legal advice, I'm struggling to answer

NC is trying to engage him( SM) in a discussion he is not equipped to have...to prove her point. I guess she's trying to show he had no firm belief either way ( not GC nor in favour of GI).

From TT:

J when writing your outcome letter were you evaluating the merits of GI vs GC debate
SD How can I describe it, I gave them equal weighting in my assessment
NC thank you thats all I have
J we will have a short break, to see if we have questions, to save time, give us to 3:15 ,

NC can we stay here
J no, just come back in at 3:15, don't wait to be collected.
Afternoon session part one ends.

Break

I think she's trying to show that his decision wasn't based on an opinion of the merits of either side. Which is important. That's not quite the same as questioning his personal thoughts on the matter.

NC can we stay here

J no.

😂

Yes.

Do we have a joint feeling that to all intents and purposes he was ready to uphold ST's complaint until he received legal advice and had to change his mind sharpish?

Perhaps it has to do with the 'specialist training' that HH accepted without question? Perhaps that training was very Stonewall law hence the ST PoV doc and then HR got straight on the blower back and said GHaud yer horses, mate. It's not your job to write a draft wholly from one PoV. Get it sorted.

From TT:

6 July, second session of the afternoon, in Tempest v DEFRA & Rural Payments Agency will begin not before 3:15. Background, link to substack, abbreviations are linked below.

From TT:

Apologies. SD was used to identify Steve Moore's evidence. It should have been SM. Hopefully, it was possible to distinguish between barristers, J and witness.

It sounds like the employer has bent over backwards for Tink and checked their homework over and over again to make sure he can’t get them, but are finding out in real time that nothing is ever enough. And it will never be enough.

From TT:

Participants and observers returning to the hearing room.

From TT:

J inaudible
SM those posts would have been offensive to some people
J did you agree
SM I agree that ST said it
J inaudible again
SM two posts among hundreds that fall into that category, I suppose acceptability in March 2024, I'm looking at the whole period, I think it does matter

J inaudible
SM those two posts were moderated, there were no other posts, there were control measures in place and subsequent to that time there was nothing else
J inaudible
SM I accept that
J inaudible
SM I accept
J inaudible

I suspect that DM just wanted ST to go away and stop snivelling. He wrote an initial draft based on what he thought ST was saying in their meetings and what ST wanted to happen. SM was then reminded about the requirement for actual evidence and that other people also have rights and he then went through his draft with those two things in mind and came to a logical conclusion (as opposed to one based on ST greetin’ and wailing).

If he structured the initial draft based on what ST was saying and then started to form his final decision by reviewing each point against the evidence collected by the IO I can see how that might help produce his final product. I am paralysed by blank sheets of paper. I am much better when I have some already on paper to work from even if what is on the paper has little or no connection to what I am trying to write so I don’t entirely doubt SMs version of events.

Has the judge switched his mic off?

Yes. I think he made a 'be kind' decision based on Stonewall training. He's tried to recast that as an initial draft. Which in a sense it was (it was always going to have to go through legal) and they said whoa, hang on..

I think SM is to be commended for not just saying
'FFS - DEFRA, the RPA, the whole CS and the entire universe does not revolve around ST's feelings! There are other people! Other opinions! Other rights! Other levels of resilience to people disagreeing with you!' etc.

From TT:

SM - those are Karl's i/x report
J inaudible, [long complex question one word in five]
SM no I didn't see it as particularly relevant
J inaudible
SM I do
J inaudible
SM I believe I ref'd this in my decision, there's a whole suite of training in DEFRA group, both on VIVA engage and bullying and harassment. I took part in that training, it was covered there. The DEFRA model was rolled out.

J inaudible
SM I think what I said was more efforts from leadership in this area, I accepted that there was always improvement that could be made
AL - very briefly

Also, he can't be expected to decide if posts were objectively distressing rather than just distressing to one or two individuals, particularly given the desire for certain individuals to actively be distressed -- which has been more than proved here.

He is not the arbiter of what is distressing as HH seems to be going at him for. He can only check that there is a moderation process in place and that he deems the approach they take to be reasonable.

Was ST harassed by seeing posts that he found distressing? I could claim harassment for claiming that I find the use of apostrophies distressing. It is quite clear that the onus is not on the writers using such punctuation to stop using it but for me to find ways to manage my quite unreasonable distress.

Ie just becuase ST felt distress does not amount to harassment. SM's job was not to prove the distress was legitimate bit to enquire if the moderation process was in place and in line with policies, which it clearly was.

From TT:

you ref'd to a point on training in your response to the judge, can you scan that page, so you have it in front of you

SM yes, top bullet talks about training, also encouraging DEFRA/RPA to share with senior leadership, the importance of this evolving area, this is part of a package of training being rolled out, senior leadership needs to be on top of this

AL you mentioned in your evidence, your terms of reference for the g/x, can you turn to page 1155,
SM yes
AL is this doc your terms of ref
SM yes
AL who drafted
SM I did, sent to SM for agreement

From TT:

SM you can see their agreement
AL subsequent to that did C make any request that they be changed or altered
SM - no
J - you recall there were 2 grievances,
SM yes
J - I can't see any references.... attachments are to current g/x

SM - I am confident that the terms of ref covered all aspects of the g/x. If there was an omission, no doubt it would have been raised
J - inaudible
SM - I say in WS, can't remember seeing two, I wonder if HR joined 2 together when sending me the bundle
AL thank you, no more qs

From TT:

Witness excused.
J I think we do have enough time to start another witness.
AL yes, I need 5 minutes to take some instruction
J come back in at 15:40
AL if we get to that point nad haven't seen the clerk will come back in

From TT:

Short break, back not before 15:40.

SM pointing out that this whole,case is effectively founded in a rapidly evolving situation/culture in workplaces.....( as the issue has increasingly come up for public scrutiny).

Since the original complaint was made, the 'situation' has evolved....and so, inevitably, will the nature of the advice.